PROFESSIONAL QUALIFICATIONS DIRECTIVE SUCCESS
On 6th June 2005, the Council of the European Union adopted
a new Directive for the Recognition of Professional
Qualifications, with the various amendments proposed at
Second Reading by the European Parliament in Strasbourg on
11th May 2005.
The new Directive consolidates and replaces the
existing
Council Directive 89/48/EEC on a general
system for the recognition of higher-education
diplomas, and
creates an EU-wide structure for the mutual recognition
of professional qualifications. It will enter into force
20 days after publication in the Official Journal of the
EU, which should happen within the next few weeks, and
the Member States will have a further 2 years to enact
it into their own national legislation.
The relevant amendment now included in the new Directive,
i.e. Amendment 38, Recital 36, states :
"(36)
This Directive is without prejudice to the application of
Article 39(4) of the Treaty and Article 45 of the Treaty
concerning notably notaries".
Art. 39(4) of the Treaty deals with the freedom of movement
for workers, and states : "The provisions of this article
shall not apply to employment in the public service". Art.
45, in the chapter relating to the right of establishment,
states : "The provisions of this chapter shall not apply,
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. The
Council may, acting by a qualified majority on a proposal
from the Commission, rule that the provisions of this
chapter shall not apply to certain activities".
[For the full text of the Treaty, click
HERE ]
The wording of Amendment 38, while specifically referring
to Notaries, nevertheless means that EU Member States
seeking to discriminate against Notaries from other Member
States, will - as before - need to convince the European
Court of Justice, on a State-by-State, activity-by-activity
basis, of the alleged legal justification for such
discrimination.
The original corresponding Amendment 11, which had been
recommended to the European Parliament on 28th April 2005
by the Committee on the Internal Market and Consumer
Protection, and which the Parliament rejected, had read
: "This
Directive shall not apply to notaries exercising official
authority".
It will, for example, still be open to the European
Commission to pursue its intended enforcement proceedings
in the ECJ against those Member States continuing to apply
nationality restrictions based on the allegation that
Notaries fall within the Art. 45 "official authority"
exception to the right of freedom of establishment
within the European Union.
The campaign for the rejection of the original Amendment 11
was spearheaded by "NEW" members Mark Kober-Smith and
Gregory Taylor, supported by other Notaries. Mark actually
travelled to Strasbourg to lobby MEPs directly, and his and
their involvement at the critical time contributed, no
doubt, to the achievement of this satisfactory result.
There now follows the full text of the "Statement of
Position" dated 5th May 2005 addressed to the European
Parliament and forwarded to MEPs :
SUBMISSION
TO THE EUROPEAN PARLIAMENT
"STATEMENT
OF POSITION"
We, the undersigned, have qualified as Notaries, and are
practising the profession of Notary, in England. We are all
EU nationals, although not all of us are nationals of the
United Kingdom. We now address the European Parliament on
an issue which is not only of vital concern to our own
profession, but which also involves fundamental principles
of European law and of the European idea.
The Recommendation for Second Reading on the Council common
position for adopting a directive of the European
Parliament and of the Council on the recognition of
professional qualifications (13781/2/2004
– C60008/2005 – 2002/0061(COD)) (Committee on
the Internal Market and Consumer
Protection,
Rapporteur
: Stefano Zappalà), contains Amendment 11, relating to
Article 2, proposing to insert a new clause 3a stating :
"This Directive shall not apply to notaries exercising
official authority", i.e. which would specifically exclude
the Notarial profession from the scope of the Directive.
Such an exclusion would, we believe, constitute a gross and
wholly unjustifiable infringement of our Treaty rights, in
particular our rights of freedom of movement and
establishment within the EU, and would be, in any event, a
clear move away from the principles of the
acquis
communautaire.
It must also be said that these developments seem to be
taking place without there having been any due process of
consultation with those persons, such as ourselves, who
will be directly affected by the outcome of the European
Parliament's decision.
The alleged justification for such an exclusion is that
Notaries exercise "official authority" within the meaning
of Article 45 the EU Treaty, but no reasoned legal
arguments are produced to support this view, which is
asserted as if it were a self-evident truth, but which is
simply false.
The background to the proposed amendment to the new
Directive is that certain EU countries, among which are
France, Belgium, Luxembourg, The Netherlands, Germany and
Austria, stipulate that only their own respective nationals
can be appointed as Notaries in those countries, the
ostensible reason being that Notaries in those countries
exercise official authority and therefore allegedly fall
within the exception provided by Article 45 of the Treaty.
The European Commission takes the view that such a
nationality restriction for Notaries does not, in fact,
fall within the exception provided by Article 45 of the
Treaty, and is therefore in breach of the Treaty rights of
EU nationals of other Member States. Accordingly, the
Commission has initiated enforcement proceedings against
the named Member States on that basis ; Portugal, Spain and
Italy originally had the same nationality restriction, but
have now removed it. The named Member States still applying
the nationality restriction, together with their respective
national Notarial organisations, have sought first to
prevent, then to resist, such proceedings ; it is clear
that these Member States have no intention or desire to
remove their nationality restrictions for Notaries, and
rather than remove those restrictions from their own
legislation, they are now attempting to change European law
itself in order to protect the monopoly enjoyed by their
own legal élite.
If, as we hope, Notaries remain within the new Directive,
there will be nothing to prevent any Member State defending
its claim for exemption in the appropriate forum under
European law, namely the European Court of Justice, and we
suggest that, precisely because the offending Member States
know that their attempts to maintain the nationality
restriction for Notaries will fail in the ECJ, they are now
attempting to persuade the European Parliament to pass the
proposed amendment.
The most important people in this discussion are, in fact,
the consumers. We fully accept that, as a matter of
consumer protection, only those persons qualified to
practise as Notaries should be allowed to practise as such
in any EU Member State. There is, however, absolutely no
logical or legal reason why suitably qualified nationals of
any Member State should be prevented from practising as
Notaries in other Member States. Furthermore, the
continuation of the existing monopolistic and
anti-competitive practices of various EU Member States
restricts the consumers' right to choice in relation to
legal services.
We trust that the European Parliament will seriously
consider the issues which we raise, and that it will decide
firmly in favour of the freedoms of movement and of
establishment of the Notarial profession, like other
professions, by rejecting any proposal which might restrict
those freedoms and/or which would otherwise be against the
spirit of the acquis
communautaire.
5th
May 2005
Mark
Kober-Smith
Gregory Taylor
Tony Martin
Roger Taylor
Juan Esteban Pérez Pinto