Nationality requirements for notaries : an analysis of the position in Malta and in other member states of the European Union

Abstract

Civil law notaries are an integral part of the legal order of the twenty-one EU Member States with a civil law system. This thesis provides an examination of some of these systems where the Notary performs State tasks and at the same time stands organisationally apart from the State. The fact that the functions of civil law notaries are performed as delegated to them by the State but at the same time are independent office-holders (vide Chapter 1), has raised the question for over the past two decades now as to whether the freedom of establishment as provided in Article 49 of the Treaty on the Functioning of the European Union [TFEU] (ex article 43 of the EC Treaty) should be applied to the professional activities of the Notary. As a result of numerous complaints against the alleged monopoly of notaries and as a result of the difference in the office of the notary in civil law countries and common law countries (vide Chapter 4), the Commission has started infringement proceedings concerning the abolition of the nationality requirement for notaries existing in the various national laws of Member States since it claims it runs counter to the freedom of establishment (vide Chapter 2). The Member States affected have replied by saying that the professional activities of notaries should be covered by the exception prescribed in Article 51 of the TFEU (ex article 45 TEC), the aim being to defend the sovereignty of Member States (vide Chapter 3). Only the Scandinavian countries and those Member States with an Anglo-American legal system, where the office of notary has a different form, do not face this problem. After a thorough discussion on the infringement proceedings, my final considerations on the subject are discussed in Chapter 5.