On 24 May the European Court of Justice (ECJ) gave judgment on the seven cases before it concerning notaries.
Fifteen nations were told that it was not possible to restrict work as a notary to their own nationals.
Any qualified EU national can now be appointed as a notary in any EU country – the nationality bar is dead.
Moreover, the supposed justification for this nationality bar – the claim that notaries exercise ‘official authority’ as defined in article 45 of the EU treaty – was comprehensively rejected by the ECJ in each of the seven cases.
These judgments are momentous, since notaries in most of continental Europe have avoided compliance with the rules of free movement and non-discrimination ever since the European community was first created in 1957.
I was particularly pleased about the judgments since I was the complainant, in 1999 and then in 2000, who led to all the cases being brought. I was also the sole person to complain for the first six years of the case.
During my training to become a solicitor I had become very interested in European law and its overriding nature.
I qualified as directive 89/48 was coming into force. It applied to solicitors and hundreds of other professions. I could not see why it should not apply to notaries.
And if it did apply to them, a huge area of work that was currently closed off to English solicitors and notaries would be opened up.
Notaries from Portugal through to Bulgaria hold important monopolies on conveyancing and often on other legal matters, such as the setting up of companies and the transfer of shares in such companies.
They earn, on average, several times more than their solicitor/avocat counterparts.
So I qualified as a notary and asked for help from the professional organisation for notaries, the Notaries Society, to open up Europe and end the nationality bar.
Not only did I not get any help, but I found that the Notaries Society and all the key decision-makers in the English notarial field did not want to comply with directive 89/48 themselves, since they too believed that notaries in England exercised ‘official authority’.
Indeed, many other lawyers, and even the Law Society, also believed that continental notaries at least did benefit from article 45.
Help was thin on the ground.
I persuaded the government to implement directive 89/48 for notaries, and led a successful campaign to end the monopoly over notarial work in London, then held by the Scrivener Company.
That brought me to 1999, when I made my first complaint to the European Commission about the nationality condition.
That was rejected, ostensibly on the grounds of ‘priorities’, but I came back in 2000 and persuaded the commission to start the infringement procedure.
The claim that notaries exercised official authority, if it were to succeed, had to establish that notaries exercised powers of coercion and constraint beyond the general law, exercised in the interests of the state.
At least it did have to establish that, if you actually read the jurisprudence, which the defendant countries mostly seem not to have done. No such power could exist, it seemed to me.
Since a notary is a private lawyer, chosen freely by the client in question – the idea that he or she could exercise such power over their client or anyone else was, in my mind, not only absurd but unethical.
Even if the power could exist, it should not, since the client’s will must always be freely expressed.
In the end, from the plethora of rather feeble arguments advanced by the defendants, only one seemed worthy of note.
This was that, in certain circumstances, an agreement signed by a party in front of a notary could be enforced without going to court.
This allegedly tremendous power was accepted by advocate-general Cruz Villalón as showing the direct and specific exercise of official authority (in his opinion delivered on 14 September 2010).
However, as I had argued in public on my website, and in private with the commission and many of the defendants’ justice ministries, the only way such an agreement can be enforced is if it is first freely signed and agreed to by the client.
The client/debtor agrees that, if they do not pay the sum due by a certain date, judgment can be enforced forthwith.
No exterior will is involved, and certainly not that of the notary – the client/debtor has determined his own fate.
The ECJ supported this view, overruling the advocate-general, who may perhaps have been (unconsciously, of course) influenced by the fact that his father was a notary in Spain, where a notario is the most exalted professional there is.
After what I think is a record 11 years on this case, what can we conclude? For my part, one key point is that the defendants were disingenuous at best.
The French government knew that its highest court, the Cour de Cassation, had already stated that notaries do not exercise any public authority at all. It also knew – because I had made sure to let it know – that the notariats of most of the defendant states, including France, had signed an agreement allowing their notaries to accompany their clients to each other’s countries, and had been doing this since 1995.
The defendant countries would have fined or imprisoned an English notary for doing any notarial work in France, or other defendant country.
But they found it was completely acceptable if done by a Dutch, Portuguese, German, Belgian, Italian, Austrian, or Greek notary supplying services in another country, to name a few from this list.
These rather damaging points were not, as I understand it, revealed to the court. They are vital because, if the article 45 defence were true, no such work could be permitted.
The second point comes from the fact that the ECJ claimed that ambiguities in the status of notaries, and in the drafting of the last directive on mutual recognition of qualifications (2005/36), mean that the defendants were not guilty of failing to transpose this directive.
This leaves open what will happen in the forthcoming revision of this directive and henceforward.
The reason that the cases have taken 11 years is because of the machinations of the defendant countries, who first tried to have my complaint dismissed, then delayed the reasoned opinion, and the consequent trial, for years.
I had to first keep the file alive, then finally push to blast away the opposition to moving to trial.
Since the defendant countries have shown a complete reluctance to even have the case tried, and have had their reasons for exemption from free movement so comprehensively rejected, I suggest that the European Commission and other bodies seeking a level playing field across Europe must urge explicit inclusion of notaries in the next general directive on recognition of qualifications.
Migrant notaries should be able to qualify in other countries through the same sort of examinations as apply to solicitors wishing to work in France or other EU countries, namely by examinations which take account of prior experience and knowledge, and test what is actually necessary for practice.
Otherwise, notaries will either do nothing, or pretend to be setting up a directive for notaries alone, which will no doubt take a decade or two, and be nothing to the purpose when it arrives.
I predict a very bright future for notaries in Europe, and an opening up of opportunities and much more equal access for women and minorities, as a result of this case.
I have already done one notarial act in the Netherlands under the occasional home title practice provision of directive 2005/36.
But since history does not happen, but is made to happen, we will have to be astute to make sure it does happen, since continental notaries will be doing all in their power to make sure it does not.
I am very much hoping that this time around I will get some help.
Mark Kober-Smith is the founder of Kober-Smith & Associates and practises as a notary in London’s Mayfair