Europe - Information and a request for help
This
note summarises what English and Welsh notaries do, who
they are and what their future may be in
Europe.
It goes on to call for support from UK MEP’s for the
free movement of notarial services and notaries in Europe.
This is already in force in the UK - the challenge is to
make sure that British notaries can enjoy the same freedoms
abroad.
We also ask for your help on 3 specific points:
1. Defending the right of UK notaries to register their
notarial documents in Spain (a right which they have long
enjoyed but which is now being removed).
2. Supporting the principle of free movement both of
notarial services and of notaries within the EU. This means
both the right to continue to have our documents accepted
in the EU as valid notarial documents (something not
questioned until now), and the right to take the necessary
examinations and practise as notaries in other EU countries
(something rejected by most EU Member States).
3. Pushing the European Commission to finish what it has
started, by taking action in the European Court of Justice
against those EU Member States which continue to refuse
free movement for notaries.
Currently,
the Dirección General de los Registros y del Notariado
(“the Spanish D.G.”) is trying to block
notarial acts made by other European notaries being
registered in Spain. [Please click
HERE
for a full report] This is not a question of competence,
just an attempt to exclude all other European notaries. We
specifically ask for support in upholding the freedom to
supply services in this regard.
The Spanish D.G. is a division of the Spanish Ministry of
Justice and is in charge of the appointment and regulation
of Spanish notaries and Land and Commercial Registrars. It
issued a Resolution published in the Spanish Gazette on 6th
April 2005 stating that henceforth only Spanish
notaries’ deeds can have legal effect in Spain and
that no deeds created by other European notaries will have
effect in Spain. This is now in force and deeds being sent
in by UK notaries are being refused.
It
is submitted that UK notaries should have the same right to
supply their services in the European Union, as the UK has
already granted to EU notaries, who are free to work here
if they pass the necessary examinations.
This freedom is currently denied by other EU governments on
the basis of a hotly-disputed claim that their notaries are
exempt from the Treaty. Notaries in the UK ask that the
Commission take the case against notaries to the European
Court of Justice, to settle the matter once and for all.
The European Commission does not agree that notaries should
be exempt from free movement under the EU Treaties. It has
begun the enforcement procedure against various Member
States, has examined all their arguments, and is of the
opinion that none of these arguments should bar free
movement. Athough the process has now been going on for 7
years, the litigation has yet to start. We suggest it is
high time that it did.
Background
English
notaries are lawyers who specialise in international
transactions and documentation. There are some 850 of them,
nearly all of whom practise as solicitors in addition to
their notarial practice, although there is a growing number
of full-time notaries. In addition to their training as
solicitors, notaries undertake additional specialised
training in international law, conflicts of law and
notarial theory and practice.
The reason their services are sought after is that many
countries see the notary as being at the pinnacle of the
independent legal professions. If documents are to be
signed, or transactions completed, or identities checked,
it is the notary who is the lawyer most trusted to do the
job. The notary’s work varies from simply certifying
that documents have been duly signed before him or her, to
investigating title to land or other property, either in
this country or other countries, to dealing with all
aspects of the transaction. Since notaries are fully
trained lawyers, they can in fact draft any deed or
document which a solicitor could draft, with the advantage
that notaries’ documents are generally accepted
everywhere, while this is less true of documents prepared
by solicitors.
The need for notaries has grown due to the
internationalisation of the market for legal services, and
the extensive communities of business persons, residents
and migrants in the UK. Notaries help trade by providing
proof that documents have been prepared and signed
correctly, thus speeding up transactions.
Additionally, the explosive growth in the purchase of homes
abroad by UK citizens has increased the demand for
notaries, since practically all substantial property
transactions outside the UK need the intervention of a
notary. Over 500,000 British citizens have properties in
Spain, as do many Irish citizens. The only country with
more of its citizens owning property in Spain is Germany.
Clients buying abroad often appoint lawyers in the country
where they are purchasing to act for them. They often do so
by means of a power of attorney, especially for Spain,
France and Portugal. However, in the UK, because we have no
nationality restriction on who can be a notary (unlike most
other EU Member States), we have Spanish and other foreign
nationals who are also UK notaries. They can thus give an
even fuller service as they often are qualified in two
countries, and are both fluent in the relevant language and
conversant with the relevant law. Being able to see a
notary here in the UK, means that clients here save time
and money.
The problem with the view of the Spanish D.G. is that the
great benefit of using notaries lies in the fact that the
universal recognition given to their documents helps smooth
trade and speed up transactions. If everyone who wishes to
do business in Spain or to buy property there, would
actually have to travel to Spain to do so, then the cost to
the consumer would increase, business would slow down, and
the people who would most benefit are Spanish notaries.
The
background in Continental Europe
Many
EU countries have modelled their notaries on the system in
France. There, notaries are the most important lawyers and
have an effective monopoly on all land transactions, and,
in practice, a monopoly for probate and some other matters.
Their numbers are limited and the combination of the
monopoly and the control on numbers makes their earnings
much higher than those of most other legal professionals,
without any guarantee of a good service.
Notaries in such countries are happy to accept the many
notarial documents sent to them by UK notaries. They are,
however, strongly opposed to UK notaries, or indeed
notaries from any other country, actually coming to work in
their countries.
One of the means of excluding such competition is a
nationality condition. You can only be a notary in France
if you are a French national, and you can only be a notary
in Germany if you are a German national, and so on.
Naturally, this is completely against the spirit and the
law of the EU, but it continues nevertheless.
Faced with threatened litigation from the European
Commission, some Member States - Spain, Portugal and Italy
- have already dropped the nationality condition.
As mentioned above, the nationality condition is one means
of excluding competition. Spain is proving to be a key
example of this, but although it has dropped the
nationality condition, it is now blocking competition by
simply refusing to accept documents prepared by other EU
notaries. It is interesting to note that not all documents
are rejected, only those which lead to the highest fees for
notaries. If notaries in Spain were to be consistent, they
would reject all documents from outside Spain, but this
would, as suggested above, slow down trade and their own
business tremendously.
Despite European law and the fact that English notaries
have been authorising all kinds of documents for Spain
(including land transactions with full access to the
relevant Land Registries) since the 1960’s (with a
gap of some years within that period), the Spanish D.G. has
now decided that other European notaries can no longer
register property purchases and sales in the Spanish
property register, even though they comply with all
necessary Spanish law formalities. As mentioned above,
English notaries have been doing this since the
1960’s, without any problems.
It appears that the Spanish D.G. is now concerned that,
once it has been accepted that documents prepared outside
of Spain can be registered in Spain, there is no reason why
those notaries should not also be able to work in Spain.
There has not been any serious argument that notaries here
are not competent to do the work, and this is because there
is no such problem. In fact, it is Spanish nationals,
acting as English notaries in the UK, who have been doing
the work, without any problems. German notaries have also
been doing this, again without any problems.
We ask for support from you in calling on the DTI and the
European Commission to intervene to stop this restriction
on our notaries (which also affects all other non-Spanish
notaries). The Spanish D.G.’s resolution, if it
remains in force, will be binding on all Land Registrars
and prevent them accepting documents from any notary who is
not working in Spain.
Why
do Continental European notaries think they can exclude
others from working ?
The argument used by Continental notaries is that they do
not have to comply with the EU Treaty regarding free
movement of services, since they are covered by the
exception contained in Article 45 of the Treaty. This
exempts activities which are connected with the exercise of
“official authority”.
In Annexe "B" to this document, we deal with the key legal
arguments of and against this “official
authority” point. These can be summarised as follows
: -
1. Solicitors and many others have tried to argue that they
have “official authority”, but they and nearly
everyone else has failed, since the European Court of
Justice interprets this exemption very narrowly.
2. Notarial systems on the Continent are modelled largely
on the French system, and the highest court in France has
TWICE ruled that Notaries do NOT possess "official
authority".
3. The European Court of Justice has issued two judgments
recently on the same day with regard to the notarial
functions of sea captains. It expressed doubts as to
whether such “official authority” actually
existed.
4. The European Commission has exhaustively analysed the
arguments of notaries from France, Germany, Italy, Spain,
Luxembourg, Austria, The Netherlands and Greece. It does
not believe that “official authority”, even if
it existed, should be a bar to free movement. Simply
barring foreigners is a disproportionate measure and all
that is needed is proper examinations (or a period of
supervised practice), to ensure that notaries are
competent.
5. Even if some notaries, in some EU Member States, on some
occasions, were to exercise “official
authority”, this does not mean that all notaries in
all EU Member States are exempt for every activity.
Restrictions on free movement have to be proportional, and
for all notaries to claim exactly the same exemption is
suspicious and highly unlikely to be justified. We provide
specific points about the situation with regard to France
and Spain in Annexe “B”, which discusses
“official authority”.
In short, we argue that although Continental notaries use
the argument of “official authority”, they
themselves cannot possibly believe in it, since notarial
documents prepared by UK notaries are used every day in
Europe. If they really believed in their argument, they
would have to insist that all these documents be prepared
by themselves in their own country.
What
is the future for UK notaries?
UK
lawyers already earn the UK a vast amount of money by way
of the export of legal services. Opening up the Continental
market to UK notaries brings a vastly increased amount of
potential work, since property sales and purchases,
inheritance law and the setting up of companies are among
the many matters in relation to which Continental notaries
have "de facto" or legal monopolies. Although we are at
present relatively small in numbers, the new opportunities
for legal work will be extensive and ultimately benefit the
UK greatly.
ACTION
PLEASE !
Please
help us by:
(a) Calling on the DTI and the European Commission to
oppose the restriction imposed by the Spanish D.G. on
European notarial documents in Spain, and to oblige Spain
to accept notarial documents again from other European
Member States.
(b) Supporting the free movement of notaries and the
inclusion of notaries in the Services Directive and any
other proposed EU legislation.
(c) Calling on the European Commission to go to the
European Court of Justice to remove the restrictions on the
free movement of notaries - it has been preparing the case
for 7 years now, and it is high time that the European
Court of Justice ruled on the alleged reasons for exempting
notaries.
Thank you for your time in reading this note.
ANNEXES
“A” : A letter signed by 48 UK notaries
protesting about the Spanish D.G.’s action.
“B” : A briefing with regard to the idea of
“official authority”.
ANNEXE
“A”
:
A letter signed by 48 UK notaries protesting about the
Spanish D.G.’s action.
Dear Sirs,
The undersigned, on behalf of the Notaries of England and
Wales, wish to bring to the attention of the European
Commission and the European Parliament, the following
complaint against the Spanish Directorate General of the
Registries and Notarial Offices ("Dirección General de los
Registros y del Notariado") and would like the European
Institutions to be aware of the current attempts by the
Notarial profession in Spain to strengthen their monopoly.
This letter is not asking for the current monopoly to be
terminated to enable a Notary of a European country to
practise in another European country. We also recognise
that at present, certain functions (lets call them,
"quasi-jurisdictional" functions), such as personal service
of documents, notarial declarations of fact ("Acta de
Notariedad"), etc. are reserved to the Notary practising in
a given town or area and in the same way that no other
Spanish Notary can deal with this matter, non-Spanish
notaries cannot either.
The subject of this complaint is the recent Resolution from
the Spanish Directorate General of the Registries and
Notarial Offices (number 5504 published in the Spanish
Official Gazette on 6th April 2005), which has serious
implications for all English (and European) Notaries who
authorise documents for Spain.
With this Resolution, the Spanish Directorate General of
the Registries and Notarial Offices was supposed to resolve
an appeal against the opinion of a Land Registrar in
respect of a Deed of Transfer of real property situated in
Spain which was signed before a German Notary. The opinion
of the Land Registrar translates as follows: "This document
is not registered because it is not deemed suitable to be
recorded at the Spanish Land Registry, because the document
lacks full legal effect in Spain and because the Spanish
system in respect of contracts for the transfer of
ownership and other rights in rem is very different from
the German system".
This Resolution, rather than clarify whether in fact the
document signed in Germany complied with the necessary
formalities required in Spanish law, quite arbitrarily and
without any legal backing by the Spanish legal system (if
required, we will be happy to provide our full legal
argument for this claim), makes certain statements in
respect of documents authorised by non-Spanish Notaries to
try and justify why a Spanish Deed of Transfer authorised
by a non-Spanish Notary cannot be accepted in Spain, even
if complies with all the necessary Spanish formalities. At
this stage, and unless a full report is requested, we will
just refer to (a) section 50.4 of the Spanish Transfer Tax
and Stamp Duty Act ("Ley del Impuesto sobre Transmisiones
Patrimoniales y Actos Jurídicos Documentados"), quoted by
the said Resolution, which translates as follows "in the
event of deeds authorised by foreign officers, the
limitation period (for the payments of taxes) will commence
on the date on which such deeds are lodged before the
Spanish Authorities"; and (b) Royal Decree 664/1999, of
23rd April, relating to foreign investment, which omitted
the requirement for Spanish Certifying Officers (Spanish
Notaries & Spanish Consuls) to authorise any deed which
documented a legal transaction in which there was a foreign
element involved.
It would appear that the above ruling is attempting to
interpret these two pieces of legislation giving them a
meaning quite different from the plain and clear meaning of
their wording to push through a fundamental change in the
way Spain regards foreign notaries, the end result being
that Spanish Notaries will establish by this means an
almost comprehensive monopoly on the preparation of
notarial documents for use in Spain.
It should be noted that the aforementioned Directorate is
not an independent body. Its members are all Spanish
notaries or Land Registrars and their quasi law-making
Resolutions are therefore, far from independent when it
comes to declaring the privileges that Spanish Notaries are
supposed to have in Spain.
English Notaries have been authorising Deeds of Transfer
for Spain for 4-5 years now, and for many years before 1986
(when a new protectionist law was introduced, which was
latter derogated in 1999), without any problems. Our
documents, contrary to what the said resolution states,
comply with the necessary Spanish formalities, in the same
manner as those attested by Spanish Notaries; they contain
the tax reference of properties, they refer to the right of
the purchaser to have a certificate from the residents'
association. An English notary will obtain office copy
entries via email or fax from the Land Registry prior to
completion and will send a fax to the Land Registry
immediately after completion requesting priority ("asiento
de presentación") for the purposes of registration.
Generally, we have no problems with Land Registrars in
obtaining the above office copy entries, priority for our
clients and full registration of all documents. Despite the
above Resolution, Land Registrars in Spain continue to
register our documents in Spain and many feel uneasy with
the said Resolution because it lacks any sound legal
reasoning.
Any Notary (including Spanish Notaries) can certify any
facts and legal aspects, (including matters concerning a
foreign jurisdiction) if they are satisfied of the accuracy
of their knowledge. Obviously, not every foreign Notary
would feel that he/she possessed sufficient knowledge of
the Spanish legal system to be able to authorise Spanish
Deeds of Transfer of land, but there is no legal reason why
those whose knowledge is sufficient to do so could not
authorise such Deed of Transfer.
The implications of the above Resolution go beyond Spanish
Deeds of Transfer of land. It questions the validity of
documents certified by a non-Spanish notary, the integrity
of non-Spanish Notaries and their duty to take into account
Money Laundering Regulations and Consumer Protection
considerations. This is wholly unjustified, with the UK
Money Laundering Regulations being arguably tighter than
those in Spain. One only needs to consider recent events in
Marbella to recognise the importance of such regulations
and the need for strict compliance by the notarial
profession throughout Europe.
We believe that the arguments put forward by the above
Resolution are not acceptable from a Spanish law point of
view, from a European Law point of view or from the
perspective of the dignity of our profession. Our view is
shared by many the Land Registrars, Mercantile Registrars
and Authorities in Spain.
We are not, so far, aware of any Registrar in Spain having
refused registration of documents drafted in accordance
with the formalities required in Spanish law simply because
they have been authorised by an English Notary. However, if
the above Resolution goes unchallenged, it will set a
precedent and Land Registrars and other Spanish Authorities
will have no choice but to abide by the principles of the
said Resolution and start refusing to accept such
documents. This change would result in the strengthening
and widening of the Spanish Notarial monopoly, forcing
consumers to use a Spanish Notary, contrary to the
principles of the European Union and to the freedom (and
commercial interest) of consumers to choose their own
Notary, just as they would for a Power of Attorney or for
their Will.
Accordingly, we kindly ask the European Commission and
Parliament to investigate and debate this matter and, if
appropriate, to request further legal reports on this
matter and inform the Spanish Authorities that the
above-mentioned Resolution is in breach of European Law.
Yours faithfully,
ANNEXE
“B” :
A
briefing with regard to the idea of “official
authority”
What
is “official authority”
?
The
EU Treaties have as one of their key freedoms the freedom
of movement of services. This right is a fundamental one,
and any exception to it, even if spelled out in the Treaty,
has to be interpreted very strictly. This means that the
Court should always try to uphold free movement, and that
even if it
is
restricted, that restriction must go no further than is
necessary.
The exemptions with regard to official authority are
contained in article 39(4) and article 45 of the Treaty.
Both articles exempt from the free movement provisions
those activities which are connected, directly and
specifically, with the exercise of “official
authority”.
Article 39(4) is in fact only relevant to jobs in public
administration, and thus is not applicable to notaries or
private firms at all.
Article 45 does relate to private individuals and firms.
The question has always been – does the individual or
firm actually exercise official authority or not, or are
they connected with its exercise?
“Official authority” is not defined in the
Treaty, so a large number of cases have arisen and gone to
the European Court of Justice (“the ECJ”)
because Member States have claimed the exemption and used
it to deny access by foreign firms or individuals to work
on the basis that the freedom of movement guaranteed by the
EU Treaty is not applicable, due to the exemption granted
by Article 45.
What
have we learned from the case law of the
ECJ?
A
landmark case was that of Reyners [Reyners – Case
2-74] (which involved a lawyer trying to practise in
Belgium) that “the possible application of the
restrictions on freedom of establishment provided for by
the first paragraph of Article 55 [note – this was
the former number of what is now Article 45] must therefore
be considered separately in connexion with each Member
State having regard to the national provisions applicable
to the organization and the practice of this
profession”.
In that case, a Dutch lawyer was trying to practise in
Belgium and was refused permission on the grounds that (a)
he was not Belgian and that (b) Belgian advocates exercised
official authority.
Since similar nationality restrictions applied in other EU
states, those states joined in the proceedings in Reyners.
The ECJ noted that it had to consider not only each
profession separately, i.e. each country one by one, but
also it had to consider each activity carried out by each
profession.
This exception is because Article 45 relates to
activities,
not whole professions. Even if one activity is indeed
connected with official authority, this is
not
enough to exempt the entire profession, unless that
activity is so closely tied to all the other activities of
the profession that it cannot be separated.
The ECJ specifically found in Reyners that many of the
activities claimed as exempt could not possibly be said to
exhibit a connection with official authority. One such
activity was legal advice and consultation (a central
activity for many notaries).
Reyners is a key case because it also made clear that it is
not up to individual states to decide what is official
authority. Otherwise, each state could simply specify that
all of its citizens exercised official authority.
The ECJ said in Reyners: “This consideration must
however take into account the community character of the
limits imposed by Article 55 on the exceptions permitted to
the principle of freedom of establishment in order to avoid
the effectiveness of the Treaty being defeated by
unilateral provisions of other states”[paragraph 50]
What
about other “official authority” cases ?
These cases include teachers in Greece [Commission v.
Greece Case 147/86], security staff in Spain [Commission v.
Spain Case C-114/97], internal auditors [Thijssen Case
C-42/92] programming and computer systems for public
administration [Commission v. Italy Case C-3/88],
experts’ reports on traffic accidents [Commission v.
Greece Case C-306/89] and public lotteries [Commission v.
Italy C-272/91]
The Article 45 defence failed on each occasion. It almost
never wins.
So why do notaries claim an exemption that is almost never
granted?
Notaries are very shy about revealing their arguments,
preferring boldly to claim exemption rather than submit any
alleged proof. What we have are hints and guesses at their
position. Again, we suggest that this shyness at open
argument exists for a very good reason, i.e. there are no
convincing arguments in favour of any exemption.
Notaries fluctuate between claiming they are exempt because
they alone are highly qualified (which is absurd, since so
are other lawyers, and exams can be set if needed), and
claiming that somehow they actually exercise authority in
the case of agreements for the payment of money which are
signed in front of them.
Their argument goes like this. If A lends B money and they
sign their contract in front of a notary, then if B fails
to pay, A can get a copy of the contract from the notary
and send a bailiff to take B’s goods without having
to go to court.
This allegedly shows that notaries are like judges, who
exercise official authority, and so notaries exercise such
authority and are exempt under Article 45.
What is wrong with notaries’ arguments
?
1. The ECJ in Reyners said that the exclusion only applied
to
activities,
not whole professions. Even if this debt activity was an
example of official authority, it would not shield notaries
from free movement, since it forms only a very small part
of the activity of notaries and simply does not apply in
some EU Member States at all.
2. The debt example is entirely different from going to a
judge, since a judge can impose his or her decision,
irrespective of what either party to the matter wants. In
the case of the debt, both parties have agreed in advance
exactly what will happen if the debtor does not pay. The
authority of the judge
is
official authority, since it is independent of the will of
the parties. The notary is simply carrying out the will of
the parties, an entirely different thing.
3. Many notary activities involve legal advice and
consultation and notaries are keen to make clear that they
can do every legal task. It has already been ruled that
such work is not covered by Article 45.
4. The notarial profession in Continental Europe was
largely modelled on the French notarial system. The highest
French court has stated on two separate occasions that
notaries do NOT possess official authority.
5. The idea of “official authority” is a
concept borrowed from French administrative law. That
concept holds that official authority is something
exercised by public bodies for the general interests of the
state or administrative unit (town, village) etc. It is not
a concept applicable to the purely private acts of
individuals.
6. We suggest that, whatever arguments are put forward by
other notarial professions, the French notarial profession,
at least, has lost this argument. Their own courts do not
accept their argument about official authority, so why
should anyone else?
7. Notaries’ arguments depend on vagueness,
imprecision and the incorrect assumption that every
notarial profession is the same, and so entitled to the
same exemption. As Reyners showed, each notarial profession
needs to justify each exemption of each activity, which
they have failed to do.
8. Even if notaries did exercise official authority, there
is no reason why non- nationals should not practise as
notaries. All that is needed is to set exams.
The
French cases
The notarial profession in its modern form has been
strongly influenced by France, which exported its Civil
Code to many other countries in Napoleonic times. Although,
unlike other EU notaries, I do not think all notaries are
all exactly the same, it is instructive to look at what
French writers on contract and notaries have written.
Indeed, as I argue throughout, every notarial profession
has to be looked at separately.
The
Cour de Cassation
The Cour de Cassation is the highest and most authoritative
court in France. On 22nd June 1999 it gave its judgement on
the interpretation of the words “un dépositaire ou
agent de l’autorité publique” [a holder or
agent of public authority] in the French law on libel of
1881-07-29 article 31. (Nº de pouvoir : 98-83514)
The case concerned a notary, and whether he was or was not
a person covered by the above definition. The court decided
that notaries were not covered by the definition and upheld
the ruling of the previous court “dès lors
qu’un notaire, qui n’est pas investi de
prérogatives de puissance publique, n’a pas la
qualité d’agent de l’autorité publique”
[“since a notary, who is not someone invested with
the prerogatives of official authority, does not have the
status of an agent of public authority”]
Please note that “puissance publique” and
“autorité publique”, the meaning of which was
decided above in respect of French notaries by a French
court, are exactly the qualities claimed by notaries to
exempt them from the application of the Treaty.
This ruling is a recent one but confirms an earlier ruling
in France which went further, when the Cour de Cassation
stated: - « les officiers ministériels : les notaires
ne peuvent être considérés ni comme des fonctionnaires
publics, ni comme des dépositaires ou agents de l'autorité
publique, ni comme des citoyens chargés d'un service public
; ils n'exercent leur ministère que dans les intérêts
privés » (Crim., 5 janv. 1935, D.H., 1935, p. 165).
[Translation – “Notaries cannot be considered
as civil servants, nor as people who have official
authority or act as agents of official authority, nor as
citizens charged with a public service, they only do their
work for private interests”]
We suggest that, whatever arguments are put forward by
other notarial professions, the French notarial profession,
at least, has lost this argument. Their own courts do not
accept their argument about “official
authority”, so why should anyone else?
Please also note that the French notarial profession was
closely copied by other notarial professions in Europe, so
that it is likely that the same ruling may be made in other
countries.
Other
French writers on notaries
Jean Carbonnier in his extensive treatise on French Civil
law, has a firm place for notaries, as the supreme witness.
The notary makes records of what has happened and his
testimony, as to what he has seen and witnessed with his
own eyes, is essentially practically unchallengeable.
Yet Carbonnier notes that an error is made by those who
equate notaries with judges. He states that the judge can
impose his will on the parties, irrespective of their
wishes, and thus has an independent will. The notary, by
contrast, cannot impose any decision or indeed any term
which is not agreed by both parties, since his job is to
record those agreements and make them legally effective.
The presence of the notary is simply the external condition
which makes the parties’ own will effective.
Carbonnier writes: « En parallèle avec une tendance
qui revendique l’autonomie du droit notarial en face
du droit civil, on a essayé, à l’étranger, de faire
apparaître entre les parties et le notaire un rapport
juridique notarial, de droit mi-public, mi-privé, qui
aurait son contenu et son esprit propres – un peu à
l’image de l’action en justice, conçue comme un
rapport juridique entre plaideurs et juge. L’analogie
ne peut être poussée très loin, car le notaire n’a
pas sur les parties la même autorité que le juge dans
l’instance; non seulement il ne juge pas, mais il ne
fait pas acte de volonté ; son activité (constater,
vérifier, qualifier) n’est qu’une condition
extrinsèque de l’efficacité de l’acte juridique
émanant de la volonté des parties. » [J.
Carbonnier : Droit Civil page 151, published by
Presses Universitaires de France]
Indeed, the very cornerstone of the French notarial system
was defined in the law of 25 ventôse an X I :
“Les notaires sont des officiers publics établis pour
recevoir tous les actes et contrats auxquels les parties
doivent ou veulent faire donner le caractère
d’authenticité attaché aux acts de l’autorité
public et pour en assurer la date, en conserver le depot,
en délivrer des grosses et expeditions”
No mention is made here of notaries having power over
citizens, by contrast it is clear that it is the parties to
the contracts who are seeking to make them authentic, and
seeing a notaire is a way to do this. The only power given
is one to confer authenticity on contracts and agreements.
The difference is thus clear : the judge imposes his will,
whereas the notary brings into force the combined will of
the parties and has a duty to be impartial. Indeed he
cannot and must not force his will on anyone. The coercive
power needed to give the notary the right to exclude
notaries’ compliance with the EU Treaty (if it
existed) would actually disqualify the notary from being a
notary at all. Indeed if notaries did exercise this
coercive force, the notarial profession would have been
suppressed long ago.
Every
citizen has official authority
We suggest that French law itself provides that any citizen
can, in certain contexts, do exactly what notaries claim is
so special about their work. Notaries in France can and
usually do draft the acts which are called “actes
notariés”. However, as a French law textbook makes
clear, the parties to a purely private document, drafted by
themselves without any notarial intervention at all, can
give that act the same value as one drafted by the notaire
himself, simply by both going to a notary, proving their
identity and acknowledging their signatures, and depositing
the document with the notary for safe keeping.
We argue that this practice simply reflects the legal
reality. The contract is the expression of the free will of
the two parties. The notary is there as a supremely
trustworthy witness, as record-keeper and legal adviser,
but his supposedly sacred act, the supreme manifestation of
his art, is one which can be equalled in legal effect by
two private individuals.
We quote the French text : “L’ordonnance
nº45-2590 du 2 novembre 1945 investit les notaires
d’un monopole pour recevoir les actes ou contrats
auxquels les parties doivent ou veulent faire donner le
caractère d’authenticité attaché aux actes de
l’autorité publique….En revanche, les parties
peuvent conférer à l’acte sous seing privé une valeur
équivalente à celle d’un acte notarié, en procédant
d’un commun accord à son dépôt aux minutes d’un
notaire avec reconnaissance d’écritures et de
signatures (Décret du 14-10-1955 art 66 ) .
We suggest that this undermines the argument of the
exclusive power of notaries, since the state has delegated
its power to everyone, not just to notaries, provided that
the parties deposit their agreement with a notary and prove
their identity and signature.
The
Spanish situation
Key points :
1. Spanish notaries cannot claim “official
authority” since their own highest court has declared
that the central basis for this, i.e. notarial enforcement
of debts outside of the context of the court, is illegal.
2. The only remaining argument is the competence of the
notary. Here too the arguments fail, since UK notaries have
been successfully registering documents in Spain since the
1960’s.
3. The competence argument is further undermined by the
fact that Spanish notaries recently admitted Spanish
stockbrokers to their ranks without examinations of any
kind. Around 1,000 were added in this way and quite a few
have no legal qualifications at all. Some of them, on the
other hand, qualified as veterinary surgeons!