Brussels challenges nationality condition for notaries

The European Commission yesterday decided to start legal action challenging Malta's current law, established in 1927, that notaries practising here have to be Maltese citizens.

According to the Commission this goes against its treaty rules, particularly those of freedom of establishment, and must be changed.

Malta's situation is hardly unique, as 15 other EU member states have also been requested by the Commission to change their laws in order to allow other EU citizens to graduate and practise as notaries in their countries.

Malta's Permanent Representative to the EU, Richard Cachia Caruana, told The Times the government will be contesting this decision as it holds that notaries are public officers and thus the nationality requirement in Malta in their respect is not contrary to Community law.

The Commission argues that the nationality condition is contrary to the freedom of establishment provided for in article 43 of the EC Treaty and cannot be justified by reference to article 45, which exempts activities related to the exercise of official authority.

The Court of Justice has ruled that such participation must be direct and specific. However, the Commission considers that this does not apply in the case of notaries as they cannot impose a decision against the will of one of the parties they are advising. In other words, notaries do not take decisions with regard to state authority and therefore cannot be deemed to exercise such authority.

As regards the high level of qualifications required to become a notary, the Commission said that there is a less restrictive method of ensuring that this level is maintained, namely by applying Directive 89/48/EEC on the general system for the recognition of diplomas, which makes it possible to check by means of an aptitude test (or probationary period) whether candidates possess the necessary level of knowledge of national law.

Malta has been given two months to answer the Commission's charges following which the Commission may decide to step up its legal action.

Government sources told The Times that Malta has already explained in detail its opposition to the Commission's claims in a letter a few days ago. Citing the Notarial Professions and Notarial Archives Act and referring to the same oath of allegiance taken by notaries, the government is claiming that these manifestly show that the office of a notary in Malta is one established in the public interest and the exercise of its functions constitutes the exercise of official authority.