The accused member states stipulate that only their own nationals can be appointed to the profession in their countries because notaries exercise ‘official authority’, therefore falling within an exception to the freedom of establishment provided by Article 45 of the Treaty.
However, the Commission has taken the view that, because notaries “cannot impose a decision against the will of one of the parties they are advising”, they “cannot be deemed to exercise such authority”.
The notarial profession is one of the most regulated professions in the EU, with very high entry barriers. In 2005, Luxembourg, had only one notary per 12,750 people, and Belgium, France, Germany, and the Netherlands had roughly one per 8,000 citizens.
This lack of competition means that competition is low and prices paid by citizens when seeking advice on important legal transactions, such as buying a house or signing a marriage contract, are too high.
With so many countries applying nationality restrictions, the Commission’s decision is likely to face strong opposition – as was the case when it attempted to include notaries in the Services Directive, which aims to facilitate cross-border trade in services within the EU, and both the European Parliament and the Council objected.