PRACTICE: seven countries still refusing to amend rules


The European Commission is taking seven member states to the European Court of Justice (ECJ) in a bid to force them to scrap protectionist restrictions that allow only their own nationals to practise as notaries.



It is bringing the case against Belgium, Germany, Greece, France, Luxembourg, Austria and Portugal.



Its action follows a warning it gave 16 member states last October. This was in the form of a reasoned opinion requesting them to modify their anti-competitive legislation, and allow foreign nationals to practise within their jurisdictions in accordance with European treaty rules on freedom of movement and establishment.



Continental notaries have claimed they have a special status, as they work under 'official authority' and are therefore exempt from the single market rules under article 45 of the Treaty of Rome.



Mark Kober-Smith, a notary public at Mayfair firm Kober-Smith & Associates, has long campaigned for notaries qualified in one EU state to be allowed to move to any other and practise. They should be able to give advice on their home law and - subject to passing the necessary exams - become host state notaries, he said.



Mr Kober-Smith said the member states' argument depends on the person exercising the official authority doing so both against the will of others and in the general interest of the state. 'Neither applies to notaries, who are carrying out clients' private wishes and necessarily do so with their consent,' he said. 'If the ECJ agrees with the commission, it will smash the monopolies of foreign notaries. It will be a ground-breaking judgment and throw open a very valuable legal market.'



Catherine Baksi