(CN) – European countries cannot discriminate against foreign nationals by restricting notary work to their own citizens, the EU’s highest court ruled, finding that notaries are not public officials.
The decision by the Luxembourg-based Court of Justice of the European Union orders seven countries to eliminate laws requiring notaries to be nationals.
The question at hand was whether the notary profession is an “exercise of official authority” under an EU treaty.
Belgium, France, Luxembourg, Austria, Germany, Greece and Portugal, which all had a nationality requirement, argued that notaries are public officials. This would have made the profession exempt from anti-discrimination rules.
But the Luxembourg-based high court said that the voluntary, consensual nature of parties involved in notary transactions indicate that these workers function merely as authenticators, and not public officials.
Notaries have no specific power to author or alter a legal document, the court continued. The binding nature of such documents results from their basis in law, and not in the power of a notary, the court said.
The competitive nature of the notary field and existence of personal liability on the part of notaries are additional indications that notaries should not be considered public officials, the court added.
The countries must change their policies or face fines.