Case C-47/08, Commission v Belgium


Nationality condition for access to the profession of notary discrimination on grounds of nationality

In this case, the Commission asked the Court to declare that, by reserving access to the profession of notary exclusively to its own nationals, the Belgium had failed to fulfil its obligations under Art. 43 EC and the first paragraph of Art. 45 EC.


The Court first of all held that the concept of establishment within the meaning of Art. 43 EC was a very broad one, allowing a national of the European Union to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom, so contributing to economic and social interpenetration within the European Union in the sphere of activities of self-employed persons (see, inter alia, Case C161/07 Commission v Austria [2008]).

The Court held that Article 43 EC was intended to ensure that all nationals of all Member States who established themselves in another Member State for the purpose of pursuing activities there as self-employed persons receive the same treatment as nationals of that State, and it prohibited, as a restriction on freedom of establishment, any discrimination on grounds of nationality resulting from national legislation (see: Case 270/83 Commission v France [1986]).

The Court held that the Belgium legislation at issue reserved access to the profession of notary to Belgian nationals, thus enshrining a difference in treatment on the ground of nationality which was prohibited in principle by Art. 43 EC.

Belgium submitted, however, that the activities of notaries were outside the scope of Art. 43 EC because they were connected with the exercise of official authority within the meaning of the first paragraph of Art. 45 EC.

The Court held that as regards the concept of the “exercise of official authority” within the meaning of the first paragraph of Art. 45 EC, the assessment of that concept must take account of the character as European Union law of the limits imposed by that provision on the permitted exceptions to the principle of freedom of establishment, so as to ensure that the effectiveness of the Treaty in the field of freedom of establishment was not frustrated by unilateral provisions of the Member States (see, to that effect, Reyners, paragraph 50; Commission v Greece, paragraph 8; and Case C-438/08 Commission v Portugal [2009]

The Court furthermore held that since the first paragraph of Art. 45 EC was an exception to the fundamental rule of freedom of establishment, it must be interpreted in a manner which limits its scope to what was strictly necessary to safeguard the interests it allowed the Member States to protect (Case 147/86 Commission v Greece [1988]; Case C-114/97 Commission v Spain [1998]  ; Case C-451/03 Servizi Ausiliari Dottori Commercialisti [2006]; Case C-393/05 Commission v Austria [2007]; Case C404/05 Commission v Germany [2007]).  

The Court held the activities of notaries as defined in the current state of the Belgian legal system were not connected with the exercise of official authority within the meaning of the first paragraph of Art. 45 EC.

Consequently, the nationality condition required by Belgian legislation for access to the profession of notary constituted discrimination on grounds of nationality prohibited by Art. 43 EC.