State Tasks of the Public Office of Notary - Belonging to the Domain of National or European Union Law ?
| Author | Ene Andresen |
| Position | LL.M., Lecturer of Administrative Law, University of Tartu |
| Pages | 157-167 |
State tasks (Staatsaufgaben) are public tasks that, proceeding from the constitutional framework of the state and the political decisions of the legislator, have to be implemented by the state. Although the procedure for implementing state tasks in many fields is regulated also by the norms of European Union law, Member States may mainly decide independently on the organisational form of implementation of these functions. Systems of legal protection of Member States form one of the few fields wherein the influence of the European Union has been modest thus far. Therefore, there have been only a few connections between office of notary (notariat), which is part of the national system of legal protection, and European Union law.
In many Member States with a continental European legal system, the notary performs state tasks, at the same time standing organisationally apart from the state and holding state authority. The fact that the functions of civil law notaries are performed not by state officials but by independent office-holders has raised the question of whether freedom of establishment as provided by the EC Treaty should be applied to the activities of the notary. Recently, the European Commission initiated proceedings in the European Court of Justice that should provide an answer to the question of whether Article 45 of the EC Treaty can be applied to notaries' professional activities and would therefore preclude the extension of European Union law on the professional rights of notaries. Many thorough studies have been published on this question. 2
The problem is examined from a slightly different point of view in the present article. The aim of this article is to determine the combined effect of national law and Article 45 of the EC Treaty on the public office and on the tasks performed within the framework of that kind of office.
The professional law pertaining to the Estonian notary provides a good opportunity for this examination. The article demonstrates that, although Estonia is among the small number of Member States wherein the requirement of citizenship for notaries has been replaced with a requirement for citizenship of the European Union, the Estonian notary participates in the exercise of state authority. Recent legislative amendments that extended the competence of the Estonian notary provide a strong reason for examining the nature of the tasks that can be suitably performed in the framework of the public office. The main argument of this article is that the notary's profession can remain in its present organisational form only if the competence of the notary does not in its essence cover entrepreneurship. At the same time, the article indicates that the application of Article 45 may in the long term lead to a situation wherein the state task is transformed into a public task whose performance is not within the competence of the state or other individuals belonging to a state organisation.
There are more organisational forms for fulfilling the state tasks today than there have ever been. Depending on the nature and importance of the task, the state has an opportunity to consider whether to perform the state tasks through its own organs, to create a legal person in public law for performing the tasks, to authorise legal persons in private law or natural persons to perform administrative duties independently under public law regulations, or to decide in favour of different forms of privatisation. One of the organisational forms for performing state tasks, which has been groundlessly overlooked in jurisprudence, is the public office.
As the state is a legal person, it needs natural persons who would exercise state authority on behalf of the state. The office is functionally the smallest entity of the state organisation that denotes a certain amount of state tasks which are given to a natural person for performance. 3 Only an individual, one who has been appointed by the state, can be the office-holder here. The office-holder who has received state authorisation through the appointment acts not as an individual but as a holder of state authority. 4 The office embodies the state tasks that the office-holder is obliged to perform and he himself cannot choose the tasks accompanying the office. Since the state has reserved the tasks to be performed within the framework of the office as its own, performance of these tasks takes place because of their nature outside the competition that is characteristic of the subjects of private law.
An office can be a part of either the direct or indirect state organisation. In the latter case, the office stands outside the hierarchy of state organs and is an independent organ of state authority. In the Estonian legal order, this office is called public office. 5 There can be several reasons for creating a public office. One of the most important factors is creation of sufficient distance between the state and the office-holder to assure the independence of the office-holder from the state. 6
The holder of the public office is not a private individual who may be partly involved in performing certain particular tasks carried out by the state. It is true that in both cases the state has decided to withdraw from performing its tasks through state officials, but in the case of the public office, the office-holder is fully subordinate to the public regulation. The holder of public office is a part of state authority not only functionally but also institutionally. At the same time, creating the public office is not any form of privatisation, because performance of the tasks does not happen in a private form but fully in the framework of the state organisation.
The influence of European Union law on performance of the state tasks and the state organisation is not limited to only those fields that are regulated by European Union law. Because of the wide scope of application of fundamental freedoms, the institutions of the European Union can have a say in the areas that belong to the competence of Member States. 7
The office of notary is, both in Estonia and in many other Member States, an independent public office that is a part of the national system of legal protection. Steady increase in cross-border legal relations has led to several important developments in the field of recognition of notarial deeds between states, but notaries themselves have been active mainly on the basis of national legislation and within the territory of their country. The notaries' acts of most Member States prescribe that only a citizen of that Member State may be a notary. The extent of the influence of the European Union on the organisation of the office of notary will become obvious in the near future.
Freedom of establishment is an important part of four freedoms of movement, the purpose of which is to guarantee the functioning of the internal market. According to Article 43 (1) of the EC Treaty, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State are prohibited. At the same time, Article 45 also prescribes an exception according to which the provisions of freedom of establishment are not applied, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority in this Member State.
The question of whether the freedom of establishment should be extended for professional activities of notaries has been topical for 20 years already. 8 The European Commission has expressed with varying activity the opinion that the professional activities of notaries should be subjected to the provisions of the Treaty. However, those Member States following the continental European legal tradition, where a civil law notary exists, consider the notary to exercise state authority and professional activities of notaries thus should be covered by the exception prescribed in the first paragraph of Article 45, the purpose of which is to defend the sovereignty of Member States.
The European Commission filed an action against six Member States - Austria, Belgium, France, Germany, Greece, and Luxembourg - with the European Court of Justice at the beginning of 2008. 9 In 2009, the Netherlands joined these Member States. 10 On the side of the seven Member States sued, all states that acceded to the EU in 2004 and 2007 with exception of Cyprus and Malta have become party to the legal proceedings as the European Commission had initiated an infringement proceeding also against them. 11 The European Commission is going to file an action also against Portugal, because, although the requirement for citizenship for a notary was abolished there in 1997, under the prevailing interpretation of the Portuguese constitution the office of notary can be held only by citizens of Portugal. 12 The polemics over the application of Article 45 of the Treaty affect 18 Member States...
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