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26.4.

2008 EN Official Journal of the European Union C 107/15

Action brought on 12 February 2008 — Commission of Action brought on 12 February 2008 — Commission of
the European Communities v Portuguese Republic the European Communities v Republic of Austria

(Case C-52/08)
(Case C-53/08)
(2008/C 107/22)
(2008/C 107/23)
Language of the case: Portuguese

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-


sented by: H. Støvlbæk and P. Andrade, acting as Agents)
Parties
Defendant: Portuguese Republic
Applicant: Commission of the European Communities (repre-
sented by: G. Braun und H. Støvlbæk, Agents)
Form of order sought

— Declare that, by failing to transpose, with regard to access to Defendant: Republic of Austria
the profession of notary, Directive 2005/36/EC (1), which
repealed and replaced Directive 89/48/EEC (2), the
Portuguese Republic has failed to fulfil its obligation under
Directive 2005/36/EC.
Form of order sought
— order the Portuguese Republic to pay the costs.

— declare that, by making access to the profession of notary


Pleas in law and main arguments conditional on possession of Austrian nationality, in Para-
graph 6(1) of the Notariatsordnung (Code on notaries), the
The Commission considers that, by failing to permit notaries Republic of Austria has infringed Articles 43 and 45 EC;
from other Member States to exercise their profession in
Portugal although they have the right to exercise that profession — declare that, by failing to transpose Directive 89/48/EC (or
in a Member State in which it is a regulated profession or where Directive 2005/36/EC) in respect of the profession of
they have exercised that profession in accordance with the notary, the Republic of Austria has infringed that directive
applicable rules in a Member State in which it is not a regulated and Articles 43 and 45 EC;
profession, the Portuguese State has failed to fulfil its obligations
under Article 13 of Directive 2005/36. — order the Republic of Austria to pay the costs.

In any event, by requiring those intending to practise as notaries


to have a degree in law from a Portuguese university or an
academic qualification equivalent to that required under the Pleas in law and main arguments
Portuguese law, Portugal has also failed to fulfil its obligations
under Articles 13 and 14 of that directive.
Article 43 EC prohibits any discrimination based on nationality
Moreover, by requiring that, before commencing their training, which results from legislation in the form of restrictions on
those intending to practise as notaries should pass public exami- freedom of establishment. Pursuant to the first paragraph of
nations intended to test their general knowledge of law, the Article 45 EC, the chapter on the right of establishment does
Portuguese State has also failed to fulfil its obligations under not apply to activities which in a Member State are connected,
Article 14(3) and 14(3)(h) of Directive 2005/36. even occasionally, with the exercise of official authority.

The Commission therefore considers that the Portuguese State


has failed to transpose into its domestic law Directive 2005/36 Pursuant to the Notariatsordnung only Austrian nationals may
so far as concerns the profession of notary. be appointed notaries in Austria. The provision in question
therefore discriminates on the basis of nationality and infringes
the freedom of establishment of nationals of other Member
(1) Directive 2005/36/EC of the European Parliament and of the States, by preventing them from exercising the profession of
Council of 7 September 2005 on the recognition of professional notary.
qualifications (OJ 2005 L 255, p. 22).
(2) OJ 1989 L 19, p. 16.
The Commission takes the view that the activities of notaries do
not fall within the exception of Article 45 EC so that freedom
of establishment is applicable to that profession.
C 107/16 EN Official Journal of the European Union 26.4.2008

In order to reply to the question of what ‘official authority’ means Action brought on 12 February 2008 — Commission of
for the purposes of Article 45 EC, reference should be made, the European Communities v Federal Republic of Germany
first, to the interpretation at national level. Activities which, in
one Member State, do not fall within the sphere of official
authority cannot be relied upon for the purposes of the excep- (Case C-54/08)
tion, even if the same activities fall within the sphere of official
authority in other Member States. Second, for the interpretation
within the meaning of Article 45 EC, the concept and scope of (2008/C 107/24)
official authority must be determined from the point of view of
Community law and its meaning must be interpreted by the
Court in an independent and uniform manner. The fact that the Language of the case: German
Austrian legislature and the Austrian courts regard activities of
notaries in principle as participation in national official
authority does not mean that those activities may therefore be
excluded from freedom of establishment according to the
stricter Community law assessment. As an exception to a funda-
mental freedom, the first paragraph of Article 45 EC must be Parties
interpreted restrictively.

Applicant: Commission of the European Communities (repre-


sented by: H. Støvlbæk and G. Braun, Agents)

In the current state of integration, it is extremely difficult to find


a substantive justification for the nationality condition in rela- Defendant: Federal Republic of Germany
tion to the activities of notaries. None of those activities, even if
they are of a sovereign nature, requires the relationship of a par-
ticular connection with the State, as in the case of nationality. In
addition, none of those activities risks, through the exercise of
sovereign authority and the deployment of State powers, Form of order sought
creating conflicts with nationals.

— declare that, by making access to the profession of notary


conditional on possession of German nationality, in Para-
graph 5 of the Bundesnotarordnung (Federal code on
The activities put forward by the Republic of Austria for the notaries), the Federal Republic of Germany has infringed
justification of the nationality requirement — authentication of Articles 43 and 45 EC;
legal transactions and agreements, the insertion of an enforce-
ment clause, legal advice and the activity of the ‘Gerichtskom- — declare that, by failing to transpose Directive 89/48/EC (or
missar’ (notary appointed by the court to carry out certain Directive 2005/36/EC) in respect of the profession of
procedural acts) — are not sufficient to justify the application of notary, the Federal Republic of Germany has infringed that
Article 45 EC. In so far as those activities actually participate in directive and Articles 43 and 45 EC;
the exercise of official authority, they do so only in an indirect
manner. The exercise of official authority should moreover not
be confused with activities in the public interest. Public benefit — order the defendant to pay the costs.
does not necessarily form part of official authority; activities
which seek to promote the general interest and not the interest
of individuals do not necessarily presuppose the transfer of offi-
cial authority. Whilst the actual exercise of official authority Pleas in law and main arguments
may continue to be reserved for a Member State's own
nationals, the exercise of a given activity in the general interest
which, for example, is the case in respect of the administration Article 43 EC prohibits any discrimination based on nationality
of justice for preventive purposes may also be guaranteed by which results from legislation in the form of restrictions on
making access to the profession and the professional duties freedom of establishment. Pursuant to the first paragraph of
subject to specific rules and control. Article 45 EC, the chapter on the right of establishment does
not apply to activities which in a Member State are connected,
even occasionally, with the exercise of official authority.

The Commission therefore takes the view that none of the activ- Pursuant to the Bundesnotarordnung only German nationals
ities, considered separately or altogether, with which notaries in may be appointed notaries in Germany. The provision in ques-
Austria are concerned, constitutes direct and specific participa- tion therefore discriminates on the basis of nationality and
tion in the exercise of official authority within the meaning of infringes the freedom of establishment of nationals of other
the case-law. Member States, by preventing them from exercising the profes-
sion of notary.

The Commission takes the view that the activities of notaries do


not fall within the exception of Article 45 EC so that freedom
of establishment is applicable to that profession.