Maltese notaries to lose exclusivity

The notarial profession is expected to face fundamental changes soon following a recent judgment by the European Court of Justice (ECJ).

After a challenge before theLuxembourg-based court from some member states, the ECJ held that EU countries cannot continue to discriminate and reserve access to the notarial profession to their own nationals.

Like several other countries, the centuries-old profession in Malta can only be exercised by Maltese nationals. However, this exclusivity will now have to change and citizens of other EU member states have to be granted permission to act as notaries in Malta.

Brussels started infringement procedures against Malta in 2006 over this issue, accusing it of breaching its freedom of establishment rules by reserving the notary profession for Maltese nationals.

Although Malta had replied to the Commission’s infringement procedure by insisting that “the profession of notary is established in the public interest and that the exercise of his functions constitutes the exercise of official authority,” the Commission had decided not to pursue the matter until the ECJ clarified the issue.

Now that the ECJ officially established that member states cannot reserve this profession exclusively to their nationals, the Commission is expected to revive the case with Malta.

“Back in 2006, when we started the infringement procedure against Malta and a number of the other new member states, we had decided to hold our action and wait for the ECJ judgment. Now that the Commission’s stance was declared justified we will be obviously revisitthe issue with all the member states concerned,” an EU official toldThe Sunday Times.

“Malta will also be in our (sights) and we will soon be writing to the Maltese authorities requesting them to change the law and remove the nationality requirement for the profession of notaries,” the official said.

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 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 held.