A3-0422/93

Resolution on the state and organization of the profession of notary in the twelve Member States of the Community

The European Parliament,

-having regard to the motion for a resolution by Mr Lucas Pires and others on the situation of notaries and the arrangements for the exercise of their profession in the twelve Member States of the Community (B3-0673/90),

-having regard to Rule 45 of its Rules of Procedure,

-having regard to the report of the Committee on Legal Affairs and Citizens' Rights (A3-0422/93),

A.having regard to the provisions of the EC Treaty on the right of establishment, in particular Articles 52 et seq., whose aim is to guarantee the right of nationals of Community Member States to take up and pursue activities as self-employed persons,

B.recalling that, according to the consistent rulings of the Court of Justice of the European Communities, the provisions of Article 52 impose 'an obligation to attain a precise result the fulfilment of which must be made easier by, but not made dependent on, the implementation of a programme of progressive measures' and therefore constitute directly applicable Community legal provisions,

C.whereas the implementation of Community rules on freedom of establishment and the completion of the internal market has implications for the work of notaries, whose responsibilities involve both the provision of advice and authentication activities, which are inextricably linked,

D.aware however that one feature of notarial work is the partial delegation of State sovereignty to carry out in particular the public service of drawing up, authenticating and legalizing contracts and ensuring that they are enforceable and have evidentiary force, and of providing preventive and impartial advice to interested parties so as to ease the burden on the courts,

1.Notes that the completion of the internal market - and, more specifically, the implementation of EC Treaty provisions on freedom of establishment and freedom to provide services - is increasing the mobility of legal subjects and accelerating exchanges of deeds, acts and contracts, and thereby leading to a substantial increase in notarial activity in all the Member States of the Community within the single market;

2.Notes, therefore, the growing importance of notarial work at Community level and considers it particularly useful to examine and carry out detailed assessments of the organization of the profession of notary; wishes to point out that this type of study would make it possible to identify the principles on which the work of notaries is based and the specific features thereof; an assessment of these features would be vital in determining whether to apply EC Treaty provisions on freedom of establishment and freedom to provide services to the profession of notary as regards non-discrimination on the grounds of nationality;

3.Wishes to point out that, while being organized differently in the twelve Member States of the Community and also within certain Member States, the profession of notary has a number of basic, virtually common characteristics, the most important being: a partial delegation of state sovereignty to carry out a public service in respect of the authenticity of contracts and evidence; independent public-service activity exercised within a liberal profession (except in Portugal, one German Land and in the particular system operated in the United Kingdom), but subject to supervision by the State - or by the statutory body to which this responsibility is delegated by the public authorities - as regards compliance with requirements governing notarial acts, regulated scales of fees imposed in the interests of clients, access to the profession or the organization thereof; a preventive role in relation to judicial proceedings, by eliminating or reducing the risk of litigation; an impartial advisory function;

4.Considers that the existence of a partial delegation of the authority of the State as an element inherent in the exercise of the profession of notary constitutes valid grounds for applying to that profession Article 55 of the EEC Treaty, under which provisions on freedom of establishment and freedom to provide services do not apply to activities which in a State 'are connected, even occasionally, with the exercise of official authority';

5.Believes, therefore, - despite the restrictive interpretation given to the exception under Article 55 - that the existing provisions of the EC Treaty on freedom of establishment and freedom to provide services do not constitute an appropriate legal base for Community harmonization of rules governing the organization of the profession of notary;

6.Urges, however, the Commission - which in principle would be responsible for putting forward such an initiative - and the Member States and notarial organizations to consult together with a view to instituting the necessary reforms to bring about on the one hand approximation at European level of certain aspects specific to the organization and exercise of notarial activities and on the other hand a sectoral approach to rules for its exercise, insofar as developments in the completion of the internal market justify this; calls, in this respect, for measures to be taken to remove, for citizens of the European Union, the nationality requirement for those wishing to enter the profession and for appropriate proposals to be made to supplement the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters with provisions which take into account the particular aspects of the transfrontier 'movement' of notarial acts;

7.Calls, finally, on the Commission and the Member States to use the legal instruments provided for by the Treaty on European Union to ensure mutual recognition without formalities of notarial acts, particularly Article 220, and to reconcile, in accordance with subsidiarity, the exception on grounds of 'ordre public' provided for in Article 55 with the general principle of equality of treatment provided for by Article 6;

8.Instructs its President to forward this resolution to the Commission, the Council and the governments of the Member States.