Action brought on 7 May 2009 — Commission of the European Communities v Kingdom of the Netherlands

(Case C-157/09)

2009/C 180/44

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (represented by: H. Støvlbæk and W. Roels, Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

Pleas in law and main arguments

The Commission objects, first, to the fact that the nationality requirement for access to, and practice of, the profession of notary represents a disproportionate impediment to the freedom of establishment of notaries who are nationals of another Member State that is enshrined in Article 43 EC. Although Article 45 EC provides for an exemption from the rules concerning the freedom of establishment, it does so only in respect of activities which are directly and specifically connected with the exercise of official authority. The Commission takes the view that the duties carried out by notaries under Netherlands law represent the exercise of official authority to only a very limited extent, and therefore that factor cannot serve to justify the impediment in the light of settled case-law relating to Article 45 EC.

Second, the Commission submits that the nationality requirement is in any event inappropriate, in the light of Article 43 EC, for safeguarding a certain level of professional qualification that will ensure that consumers are protected. There is in fact another method — one that is far less of a hindrance to free movement — of guaranteeing the high level of qualification required for the work of a notary: the possibility of the host Member State demanding one of the compensatory measures provided for in Article 4 of Regulation 89/48/EEC. (1)

(1)  Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16).