With all the ink spilt since the publication of the Akzo Nobel judgment last week, and the ink still to be spilt in as-yet-unwritten academic articles, something published at the same time on the website of the European Court of Justice has gone unnoticed.That is the opinion of the advocate general in a series of joined cases brought by the European Commission against a number of member states for their reservations in relation to notaries.

The case against the member states was in two parts. The first related to the nationality restriction, whereby some member states have traditionally reserved the profession of notary by law to their own nationals. Is this permitted under European law? The UK government joined the European Commission in declaring that it is not. The advocate general came down forcefully against the idea of nationality restrictions, and if his opinion is followed by the court, as it generally is, then it should soon be open to, say, English solicitors to become French notaries. However, in coming to this decision, the advocate general made some dangerously wide statements.

He argued strongly, and in my view rightly, that at this stage of the EU’s development, nationality is a meaningless restriction. If we are able to vote in European elections in other member states – as I am for instance in Belgium, since I am resident here – then how can the loyalty of any EU citizen be called into question in relation to a particular member state? The guilty member states tried to rely on the oath that notaries are required to take, Luxembourg going so far as to say that the oath protected the Grand Duchy’s constitutional status, but the advocate general was having none of it.

However, in welcoming notaries into the European family – at last! – he went too far. He said: ‘A notary, through his intervention, performs an activity of an official nature the effects of which are automatically recognised in all the states of the Union. The existence of a high degree of trust, and the community of values and principles on which the Union is founded make the notary a public official not only of the state but also of the Union.’ Whereas I like the sentence that concludes that paragraph – ‘The notary thus operates within a framework in which loyalty extends both to the state conferring authority and to the Union assuming it, as well as to the other member states’ – I think that the first two sentences should not be accepted. Why has the European Commission committed itself to a consultation on the effect of notarial documents – and civil documents in general (such as birth certificates) – across borders, if the advocate general is right and that these documents are already automatically recognised, even in countries which do not recognise the profession of notary?

This is an important point. Notaries are trying at every turn to insert themselves into the European legal process at the expense of lawyers and others, and it is in the public interest that this is resisted. For instance, the CCBE just last week approved a policy against notarial intervention in changes to be made to business registers (what Companies House does in the UK). The European Commission is consulting on the interconnection of such registers, and the European notaries had suggested that, on direct and automatic transmission of data from one member state’s register to another, they should be there with an authentication procedure to guarantee safety. The CCBE saw no reason for it. Nor do we see any reason why a notarial document should have automatic recognition across borders if one drawn up lawfully under a member state’s legal system by a lawyer does not have such such recognition. Both should be treated equally under the principle of mutual recognition, to guarantee equal respect for different legal systems.

The second part of the advocate general’s opinion related to whether notaries should be brought within a recent directive on free movement of professionals. Notaries have always argued strongly that they fall under an exception to free movement, provided by article 45 for ‘activities which in that state are connected, even occasionally, with the exercise of official authority’. On this point, they won, on the grounds that their authentication duties are core to their professional duties and so exempt the whole profession, and not just those activities which might be considered official. If the court follows this argument, it will be a significant victory for them.

A number of solicitors follow notarial affairs closely. For them, eventual confirmation of the nationality argument will be an important step forward in the application of EU principles to qualification as a notary.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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