Notaries: end of the nationality condition

In the series of judgments, delivered on 24 May 2011(1), the Court of Justice finally provided the answer to the question: is the condition of nationality applied in many Member States of the European Union as to the profession of notaries in line with the European Union law?

The answer of the Court

The Court agreed with the Commission (and the United Kingdom who intervened in support of the Commission(2) and ruled that no element in the profession of the notaries comes within the scope of the "exercise of official authority" within the meaning of the first paragraph of Article 45 TEC (Article 51 TFEU), as no such element is directly and specifically connected with the exercise of official authority.
In short, the Court concluded that the notaries do act in pursuit of an objective in the public interest, however, that is not, in itself, sufficient for a particular activity to be regarded as directly and specifically connected with the exercise of official authority. Could be... (for more detailed understanding on how the Court approach each element in the profession of the notaries in each Member States, see the judgment themselves).

End of the story?

Probably not. Apart from the condition of nationality, access to the profession of the notaries is subject to other conditions in the Member States and those were not the subject-matter here (which, in addition, was limited to the freedom of establishment)(3).
Yet, the Court was not completely silent in this regard. In one paragraph (not more), the Court pointed out that "the fact that notarial activities pursue objectives in the public interest, in particular to guarantee the lawfulness and legal certainty of documents entered into by individuals, constitutes an overriding reason in the public interest capable of justifying restrictions of Article 43 EC deriving from the particular features of the activities of notaries, such as the restrictions which derive from the procedures by which they are appointed, the limitation of their numbers and their territorial jurisdiction, or the rules governing their remuneration, independence, disqualification from other offices and protection against removal, provided that those restrictions enable those objectives to be attained and are necessary for that purpose."(4)
In other wors, the Court indicates that the other conditions of access to the profession, although constituting a restriction of Article 43 TEC (Article 49 TFEU), could be justified. But this not a definitive answer. The other conditions must be proportionate, the Court says, but are they proportionate? As this was not the subject-matter of the cases at hand, the Court said nothing in this regard and the question thus remains unanswered.
The story might therefore continue, in particular having regard to the fact that, even after the abolition of the nationality condition, other requirements will continue to make it difficult (but not impossible any longer, at least theoretically) for foreigners to have access to the profession.

Recognition of professional qualifications


In the cases at hand, the Commission also claimed that the Member States concerned failed to transpose the Directive 89/48 (now Directive 2005/36) with respect to the profession of notary. The Court rejected this head of claim and based itself on rather interesting reasons. The Court found, simply, that the Directive is unclear. Therefore, it concluded: "In view of the particular circumstances of the legislative procedure and the situation of uncertainty which resulted, as may be seen from the legislative context described above, it does not appear possible to conclude that, at the end of the period prescribed in the reasoned opinion, there existed a sufficiently clear obligation for the Member States to transpose Directive 89/48 with respect to the profession of notary."(5)

(1) The judgments concerned Belgium (C-47/08), France (C-50/08), Luxembourg (C-51/08), Portugal (C-52/08; however, this case did not involve the condition of nationality), Austria (C-53/08), Germany (C-54/08) and Greece (C-61/08). In addition, the Commission pursues infringement proceedings against all the so-called new Member States, except for Cyprus and Estonia (that abolished the nationality condition in June 2008, following the example of Spain and Italy; see the European Commission press release IP/09/152)
(2) http://www.lawgazette.co.uk/news/european-court-opens-access-notary-profession
(3) See paragraphs 74 to 76 of the judgment against Luxembourg, for instance: "This head of claim thus concerns solely the nationality condition laid down by the Luxembourg legislation at issue for access to that profession, from the point of view of Article 43. Accordingly, it does not relate to the status and organisation of notaries in the Luxembourg legal system, nor to the conditions of access, other than that of nationality, to the profession of notary in that Member State. Moreover, as the Commission stated at the hearing, the first head of claim does not concern the application of the provisions of the EC Treaty on the freedom to provide services. Nor does it relate to the application of the Treaty provisions on freedom of movement for workers."
(4) Paragraph 97 in the judgment against Luxembourg (other judgments contain similar paragraphs).
(5) Paragraph 143 in the judgment against Luxembourg.

T-233/09 Access Info Europe v. Council: too much transparency?

The General Court's judgment was delivered on 22 March 2011, but the story is far from over, as the Council is likely to appeal to the Court of Justice.

The story

The core issue is quite simple: Access Info Europe, organisation based in Spain, requested access to a document of the Information Working Party of the Council. The document contained drafting proposals (or rather suggestions) presented by some delegations in order to "feed" the debate within the Working Party (ironically enough, the legislative proposal at issue was the proposal for a Regulation amending Regulation No 1409/2001 regarding public access to European Parliament, Council and Commission documents, i.e. the Regulation that the Council applied when dealing with the request concerned). The Council granted access to the document, excluding (nothing but) the identity of the delegations who submitted the proposals (in this regard, the Council referred to Article 4.3 of the Regulation No 1409/2001 that reads inter alia: "Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure"). Access Info Europe took that decision to the General Court and the General Court ruled that also the identity of the delegations should have been disclosed.

Where does transparency end?

The question that one might ask oneself (looking at the facts described above) is: wasn't the Council already very generous when it did not hesitate to disclose the full text of the proposals discussed within the Working Party? And more importantly: why should the identity of the authors of those text be necessary?
Clearly, transparency is an important principle of democracy. It serves as an instrument of control the public can excercise in relation to the functioning of the institutions of a State (or, as in this case, a state-like entity, i.e. the European Union). In my view, the Council's approach was fully in line with this: the public was given access to the documents discussed within that institution and thus received all the information necessary for it to understand in what direction the debate is moving and to try and influence the Council (or a Member State of their choice, or the Commission, or a Member of the European Parliament...) to alter that direction. Yes, if the public also knew who is behind a proposal, their pressure could be targeted better (they could go directly to the bad guy or even "hang" the bad guy publicly). But is that really necessary? And would that be a democratic debate? The democratic debate should primarily center around the arguments and should not focus on who puts the argument on the table (which might easly turn into an emotional war in which reasonable discussion is set aside).
And one more thing: the eventual author of the proposed legislative act will be the Council (together with the European Parliament). In other words, the "target" is known: the Council. What more do you need?

Side effects of transparency

It should also pointed out that many examples show that transparency is not always ideal. Regarding the infringments of the EU law, for instance, the European Commission sometimes takes advantage of the press in order to extert more pressure on the Member State concerned. The result: under the pressure, the Member State, although equipped with solid arguments, will many times give in and do what the Commission wants. Yet, the "objective truth" might sometimes be elsewhere.